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Marc Norfleet v. Roger E. Walker

March 22, 2011

MARC NORFLEET, PLAINTIFF,
v.
ROGER E. WALKER, JR., DIRECTOR OF IDOC, ET AL., DEFENDANTS.



The opinion of the court was delivered by: J. Phil Gilbert District Judge

MEMORANDUM AND ORDER

This matter comes before the Court on Magistrate Judge Philip M. Frazier's Report and Recommendation ("R & R") (Doc. 79) of January 7, 2011, which suggests the Court deny Plaintiff Marc Norfleet's ("Norfleet") Motion for Preliminary Injunction (Doc. 59) and Petition for 90-Day Emergency Preliminary Injunction (Doc. 61). Norfleet filed an Objection (Doc. 83) thereto, to which Defendants did not file a response.

For the following reasons, the Court, inter alia, REJECTS the R & R and ORDERS the parties appear for a hearing on the underlying motions on Wednesday, March 30, 2011, at 1:30 p.m.

STANDARD OF REVIEW

After reviewing a report and recommendation, the Court may accept, reject, or modify, in whole or in part, the findings or recommendations of the magistrate judge in the report. Fed. R. Civ. P. 72(b). The Court must review de novo the portions of the report to which objections are made. The Court has discretion to conduct a new hearing and may consider the record before the magistrate judge anew or receive any further evidence deemed necessary. Id. "If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error." Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999).

Here, Norfleet has objected to nearly all of the R & R. As such, the R & R shall be placed under the de novo lens of review.

BACKGROUND*fn1

The crux of the underlying claim is that Norfleet has not been allowed to engage in meaningful and beneficial exercise as required by Title II of the Americans with Disabilities Act of 1990 ("ADA"). Norfleet, who is confined to a wheelchair, makes a number of specific allegations to illustrate this point. While non-disabled inmates may participate in five to seven hours of exercise per week, the "ADA recreation schedule" applicable to Norfleet allows for one "if lucky" hour of exercise per week that is often canceled. Disabled inmates at Lawrence Correctional Center, where Norfleet is currently incarcerated, are not provided with any meaningful ADA-certified recreational equipment other than a basketball. Meanwhile, the prison provides non-disabled inmates with a universal weight machine, pull-up and push-up bars, and card and chess table access. In short, the institution has "no therapy - no physical therapy, nor any therapy equipment available for Plaintiff[']s use." Doc. 59, p. 5.

According to Norfleet, Lawrence Correctional Center is the only Level 2 facility in the Illinois Department of Corrections that does not comport with the ADA in terms of exercise equipment. Both Dixon Correctional Center and Big Muddy River Correctional Center have the sought-after ADA-certified recreation equipment.

Because Norfleet has not been able to properly exercise, his well-being is deteriorating on a daily basis. Most notably, his shoulder is "reaching the point of no return" due a lactic acid issue. Doc. 59, p. 2. This pain affects Norfleet's ability to dress, undress, bathe, and sleep.

Norfleet maintains that Defendants are well-aware that the prison is violating the ADA because he has filed roughly 150 grievances and complaints on the issue over the last three years. These grievances, however, have been consistently rejected. Defendant Ms. Campanella apparently told Norfleet that an inmate needs to only be outside of his cell for one hour per day and that hour need not be purely recreational. Defendant Pamela Moran told Norfleet that the prison is in compliance with any recreation law so long as he can leave his cell to attend chow twice daily.Also, in response to one of Norfleet's many grievances, Moran informed him that "[t]he law only requires that inmates be allowed outside the cell for one hour per day. The law does not require the one hour to be purely recreational." Doc. 61-2, p. 3.

This is not to say that Norfleet's concerns have always fallen on deaf ears. One of the prison's physicians gave Norfleet a "Shoulder Surgery Exercise Guide" that he could follow in his cell as a substitute for traditional physical therapy. See Doc. 59-2. Norfleet has also been prescribed Tylenol to alleviate any pain, although the medication is of no avail. Further, Norfleet concedes the prison "informed [him] that the lack of ADA equipment was due to budgetary constraints, but that [he] was welcome to participate in regular recreation periods with his housing unit." Doc. 83, p. 4.

Norfleet prays for five hours of beneficial meaningful exercise per week. He states that this may be accomplished if Lawrence Correctional Center obtains ADA-certified recreation equipment that can be used five hours per week or if Norfleet can be transferred to Dixon Correctional Center or Big Muddy River Correctional Center for five hours per week. Norfleet also ultimately wants to meet ...


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